HomeMy WebLinkAbout12/4/2002 - STAFF REPORTS (13) DATE: DECEMBER 4, 2002
TO: CITY COUNCIL
FROM: DIRECTOR OF COMMUNITY & ECONOMIC DEVELOPMENT
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT AND LEASE AGREEMENT
FROM BURNETT DEVELOPMENT COMPANY FOR A PROPERTY LOCATED AT 2901
NORTH PALM CANYON DRIVE, THE FORMER TRAMWAY GAS STATION
RECOMMENDATION:
It is recommended that the City Council approve an Assignment of Lease with
Burnett Development Company for a property located at 2901 North Palm
Canyon Drive in the amount of $4,000 per month until close of escrow; the
Assignment of Purchase and Sale regarding the same property in an amount of
$638,000 plus pro rata closing costs and contingent master planning costs; and,
a budget resolution appropriating the funds necessary to execute the transaction.
SUMMARY:
Staff is recommending that the City purchase the former Tramway Gas Station
through an Assignment of a Purchase and Sale Agreement held by Burnett
Development Company with the current owner, and an assignment of the current
lease on the building held by Burnett until the close of escrow, which could occur
as late as March, 2003. The purchase price is inclusive of the actual costs
incurred by Burnett in its acquisition of the building, which represents a fair
market transaction entered within the past year. In addition, the City agrees to
work with Burnett on a retail master plan on the land surrounding the building, to
be developed as a visitor-oriented retail center. The City would assume Burnett's
current lease on the building, which runs until the close of escrow with the current
owner; for tax reasons related to the seller, the anticipated closing date is as late
as March, 2003 but could be earlier.
BACKGROUND:
The Council approved an amendment of a lease with PSP Rental Company for
office and retail space housing the Palm Springs Visitor Information and
Reservation Center at 2781 North Palm Canyon Drive at its meeting on
November 26, 2002. That lease expires October 31, 2003. That lease
amendment provides enough time until this building, designed by renowned
architect Albert Frey, could be modified for the needs of the Visitors Center,
approximately 11 months. Given the historic status of the building, special
sensitivity is necessary in space planning the building.
Burnett acquired the property from the current owner with an agreement that
required the building to be leased for a year prior to close of escrow, for tax
reasons. The City will receive an assignment of the agreement for Burnett and
close as late as March; however, staff will endeavor to negotiate an earlier
closing date. In the meantime, the City will lease the building from the current
owner until the close, which would allow access for space planning, site
planning, construction, and more. The Visitor Center will be located in the
building at the beginning of next season.
I
Funds are available in fund balance to temporarily cover the acquisition costs.
However, the City has several options to cover all or a portion of the acquisition
and remodel costs, including the retirement of the Monte Vista Hotel note this
year, or financing the acquisition of the structure through a "piggyback" on
another bond issue, or through financing through Call-ease, spreading the cost
over a 15-year period. Prior to the March closing date, the City will have an
estimated project budget which include the cost of all interior and exterior
improvements, as well as the addition of additional restroom facilities somewhere
on the site. If the City finances the purchase, it could choose to finance the
building and site improvements as well.
John S Ray on
Direc r of C unity & Economic Development
AP PROVED:
City Manager
ATTACHMENTS:
1. Assignment of Purchase and Sale of Real Property and Lease Agreement
of Real Property
2. Minute Order
3. Budget Resolution
ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
AND LEASE AGREEMENT OF REAL PROPERTY
TIES ASSIGNMENT OF PURCHASE AND SALE AGREEMENT AND LEASE
AGREEMENT OF REAL PROPERTY(this "Agreement") is made this_day of
, 2002, by and between BURNETT DEVELOPMENT CORPORATION, a California
corporation ("Assignor"), the CITY OF PALM SPRINGS, a chartered municipal corporation
(`Assignee"), and the Neil R. and Carol A. Anenberg Family Trust ("Owner"),
RECITALS
A. Assignor has a leasehold interest and right to purchase, pursuant to that certain
Commercial Property Purchase Agreement and Joint Escrow Instructions dated February 7, 2002
(the "Purchase Agreement") and that certain Lease Agreement dated February 7, 2002 (the
"Lease Agreement"), attached hereto as Exhibits "A" and "B" respectively, real property located
at 2901 N. Palm Canyon Drive in the City of Palm Springs, County of Riverside, State of
California, as more particularly described on Exhibit "C" attached hereto (the "Land"), together
with (i) all rights, privileges, easements, licenses and interests appurtenant thereto, including,
without limitation, all oil, gas, water and water rights (but specifically excluding any pipelines or
pipeline easements appurtenant to the Land) (collectively, "Appurtenances"); (ii) all intangible
property (`Intangible Property") owned or held by Assignor in connection with the Land,
including, without limitation, development rights, governmental approvals and land entitlements;
and (iii) all buildings, improvements and structures located on the land (`Improvements"). The
Land, Appurtenances, Intangible Property, and Improvements are collectively referred to herein
as the "Property." The Land, Improvements and the Appurtenances are collectively referred to
herein as the"Real Property".
B. Pursuant to the Purchase Agreement and the Lease Agreement, Assignor has
certain rights to assign all of its rights and obligations subject to the written consent of Owner.
This Agreement contemplates an assignment of all of those rights and obligations in the Purchase
Agreement and the Lease Agreement.
C. The Property has been included in a draft master plan study (`Master Plan") for
development of a large mixed commercial, office and residential development on the Property.
The portion of the Master Plan related specifically to this Property is more particularly shown on
Exhibit D attached hereto (the "Plan Area"). The Master Plan has not at the present time been
reviewed or approved through the City's planning process. The Assignee and Assignor desire to
keep the landscaping and public improvement or common areas in and around the Property as
part of the integrated Master Plan for the Plan Area and intend to cooperate in a reciprocal access
and easement agreement at such time as the remainder of the Plan Area is approved and
developed.
D. Assignor wishes to assign its right, title and interests concerning the Property to
Assignee and Assignee wishes to acquire by assignment the rights to lease and buy the Property
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from Owner pursuant to the terms and conditions of this Agreement. Assignor and Assignee
desire to obtain Owner's specific consent to such assignment.
E. Assignee has represented to Owner that it shall perform all obligations of
Assignor under the Lease Agreement and the Purchase Agreement.
F. Based on such representations, Owner wishes to consent to the assignment subject
to the terms of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
TERMS AND CONDITIONS
1. ASSIGNMENT OF RIGHTS TO PURCHASE AND SALE AND LEASE
AGREEMENTS,
1.1 Assi_nm�ent. Assignor hereby assigns, sells, and conveys and otherwise transfers
to Assignee all of Assignor's right, title and interest in and to the Lease Agreement and the
Purchase Agreement. Assignor warrants such copies, Exhibits "A" and `B" herein, to be true
and correct copies of the entire agreements between Owner and Assignor with respect to the
Property. This assignment of Assignor's right, title and interest in the Lease Agreement and the
Purchase Agreement to Assignee shall be effective on the Due Diligence Date, defined in
Section 6.1 below, provided that Owner consents thereto as evidenced by its execution of this
Agreement in the space set forth below. Owner's execution below confirms that, upon the Due
Diligence Date assigning Assignee has made no objections related to title or condition of the
Property, Assignor shall no longer remain liable for the performance of any such obligations,
terms, covenants, conditions and agreements under the Lease Agreement or the Purchase
Agreement, and Owner hereby agrees to forever release Assignor from the performance of any
such obligations, terms, covenants, conditions and agreements under the Lease Agreement or the
Purchase Agreement.
1.2 Assumption of Lease and Purchase and Sale. Subject to the satisfaction of the
conditions in Section 7 below, Assignee hereby accepts all of Assignor's right, title and interest
in and to the Lease Agreement and the Purchase Agreement and assumes and agrees to perform
all of Assignor's corresponding obligations, terms, covenants, conditions and agreements under
the Lease Agreement and the Purchase Agreement on, from and after the Due Diligence Date.
2. OPENING OF ESCROW: CLOSING DATE.
2.1 Opening of Escrow. Within one (1) business day after the execution of this
Agreement by all parties, if not previously opened by Assignee and Owner, the parties shall open
an escrow ("Escrow") with the Escrow Holder. An executed copy of this Agreement shall be
deposited with Escrow Holder. Escrow Holder shall fax written notice of the receipt of this
Agreement to all parties.
2.2 Escrow. Instructions shall be as provided in the Purchase Agreement.
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2.3 Closing Date. Escrow shall close on or before March 1, 2003 ("Closing Date").
Escrow shall close within fifteen (15) days of the Assignee providing written notice that all
conditions under Section 7 have been satisfied but in no event prior to January 1, 2003. The
terms the "Close of Escrow" and/or the "Closing" are used herein to mean the time the Grant
Deed (as hereinafter defined) is recorded in the Office of the County Recorder of Riverside
County, California.
3. CONSIDERATION.
3.1 Assignment Cost. The assignment cost for the Property is estimated at
SEVENTY-FOUR THOUSAND AND 00/100 DOLLARS ($74,000.00), the actual cost shall be
comprised of verified lease payments assignor has made pursuant to the Lease Agreement and an
additional amount of THIRTY-FOUR THOUSAND AND 00/100 DOLLARS ($34,000.00)
representing Developer's overhead and carrying cost in the transaction ("Assignment Cost"). A
potential additional payment amount of EIGHTY-FIVE THOUSAND AND 00/100 DOLLARS
($85,000.00) may also become due, for a planning cost reimbursement ("Reimbursement"),
solely in the event that the City refuses to approve a Master Plan as set forth in more detail in
Section 3.3 below. The Assignment Cost is the total compensation to be paid by Assignee to
Assignor and all-inclusive of Assignor's interest in the Property and any rights or obligations
which exist or may arise out of the acquisition of the Property for public purposes, which
compensation Assignor acknowledges and agrees is inclusive, without limitation, of Assignor's
fee interest in the land and any improvements located thereon, severance damages, relocation
expenses, loss of business goodwill, costs, interest, attorneys fees, and any claim whatsoever of
Seller which might arise out of or relate to any respect to the acquisition of the Property by
Assignee.
3.2 Payment of Assignment Cost. Upon the Due Diligence Date, Assignee shall pay
to Assignor the Assignment Cost.
3.3 Master Plan Development; Reimbursement. Assignor and Assignee recognize
that it was originally Assignor's intent to acquire the Property to be incorporated as a Master
Planned development at the strategic entry intersection into Palm Springs. Assignee supports
such a Master Plan concept. The parties agree that Assignor has spent some EIGHTY-FIVE
THOUSAND DOLLARS ($85,000.00) in costs for such Master Plan which will be lost if the
Assignee refuses to approve such Master Plan due to Buyer's acquisition of the Property.
However, the parties further agree that the Master Plan must be complementary to the Assignee's
use of the Property as a Visitor Center providing tourism services for those entering the
community.
Assignor has prepared a Master Plan for 100.66 acres in three (3) areas. The two
(2) areas on the south of Tramway Road entail about 45.18 acres of residential development to
the west and 16.52 acres of commercial development fronting on Palm Canyon. The third parcel
involves 38.96 acres of commercial development surrounding the Property. This third parcel is
referred to as the Plan Area.
With respect to the Plan Area, Assignor undertakes the following obligations:
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(a) Assignor will submit an application for development of a project
(`Project") for the Plan Area within twelve (12) months of the date of this Agreement;
(b) The Project will be for commercial use and be compatible with the Visitor
Center use of the Property. Assignor must leave the building on the Property intact,
consistent with it's historical heritage, but may modify landscaping, walkways and
parking to integrate the Visitor Center with the overall Project. The Project may include
shared access and parking, and lot lines may be adjusted, but in such a configuration that
Assignee will retain ownership of adequate legal parking, setbacks and so forth;
(c) Assignor's Project will comply with all general plan and zoning
regulations of the City;
(d) Assignor will obtain environmental approval and comply with all
environmental requirements;
(e) Assignor will diligently process the Project and bring it to hearing before
the City Council within two (2) years of the date of this Agreement in an approvable
form; and
(f) Assignor will defend any Project challenges or litigation concerning the
Project without cost to the City.
If Assignor fulfills these obligations, then City Council of Assignee will have one hundred eighty
(180) days from the date of the first noticed hearing before the City Council to approve or
approve with conditions the Project. If City Council refuses to approve the Project, or where
Assignor has not met the above conditions, and City Council refuses to permit Assignor to
modify the Project to meet such conditions, then Assignee will be obligated to pay Assignor said
EIGHTY-FIVE THOUSAND DOLLARS ($85,000.00), after Assignor's written request for such
payment and documentation as to why such payment is due.
It is expressly understood that no payment is due if Assignor fails to apply for or diligently
process the Project for approval within the above periods, or fails to submit a Project complying
with the City's general plan or zoning, or fail to revise the Project to meet the requirements of
City.
3.4 Joint Use Covenants. The parties shall develop appropriate joint use covenants
recorded against title of all benefited and burdened parcels.
3.5 Repurchase of Property by Assignor. In the event that Assignor and Assignee
agree that the Plan Area design and function is achieved best by lot line adjustments to the
Property, Assignor agrees to pay the per square foot cost by the greater of(i) the fair market
value or (ii) the cost paid herein on a square foot basis by the City to acquire the Property, for the
land removed in any property line adjustments.
4. ESCROW FOR PURCHASE OF PROPERTY.
Escrow instructions shall follow those provided in Purchase Agreement (Exhibit"A").
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5. TITLE MATTERS.
5.1 Approval of Title.
(a) Promptly following execution of this Agreement (but in no event later
than five (5) days following Opening of Escrow), Assignor shall cause to be delivered to
Assignee a preliminary title report issued through Stewart Title Escrow Company (the
"Title Company"), describing the state of title of the Property, together with legible
copies of all exceptions specified therein and a map plotting all locatable easements
specified therein (the "Preliminary Title Report"). Assignee shall notify Assignor in
writing ("Assignee's Title Notice") of Assignee's approval of all matters contained in the
Preliminary Title Report or of any objections Assignee may have to title exceptions or
other matters ("Disapproved Exceptions") contained in the Preliminary Title Report
within ten (10) business days after Assignee's receipt of the Preliminary Title Report
("Assignee's Title Notice").
(b) In the event Assignee delivers Assignee's Title Notice within said period,
Assignor shall have a period of ten (10) days after receipt of Assignee's Title Notice in
which to notify Assignee of Assignor's election to either (i) agree to attempt to remove
the Disapproved Exceptions prior to the Close of Escrow; or (ii) decline to remove any
such Disapproved Exceptions ("Assignor's Notice"). Assignor shall only elect to decline
to remove Disapproved Exceptions which Assignor in good faith believes Assignor's
reasonable efforts would not result in removal or as to which removal would result in cost
or expense to Assignor other than nominal administrative expense incurred in the process
of removal. Assignor's failure to deliver Assignor's Notice within said ten (10) day
period shall be deemed Assignor's election to decline to remove the Disapproved
Exceptions. If Assignor notifies Assignee of its election to decline to remove the
Disapproved Exceptions, if Assignor is deemed to have elected to decline to remove the
Disapproved Exceptions or if Assignor is unable to remove the Disapproved Exceptions,
Assignee may elect either to terminate this Agreement and the Escrow or to accept title to
the Property subject to the Disapproved Exception(s). Assignee shall exercise such
election by delivery of written notice to Assignor and Escrow Holder within ten (10) days
following the earlier of (i) the date of written advice from Assignor that such
Disapproved Exception(s) cannot be removed; or (ii) the date Assignor declines or is
deemed to have declined to remove such Disapproved Exception(s).
(c) Upon the issuance of any amendment or supplement to the Preliminary
Title Report which adds additional exceptions, the foregoing right of review and approval
shall also apply to said amendment or supplement, provided, however, that Assignee's
initial period of review and approval or disapproval of any such additional exceptions
shall be limited to five (5) days following receipt of notice of such additional exceptions,
together with copies of the underlying documents referenced therein.
(d) Nothing to the contrary herein withstanding, Assignee shall be deemed to
have automatically objected to all deeds of trust, mortgages, judgment liens, federal and
state income tax liens, delinquent general and special real property taxes and assessments
and similar monetary encumbrances affecting the Real Property, and Assignor shall
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discharge any such non-permitted title matters of record prior to or concurrently with the
Close of Escrow.
5.2 Title Policy. When Escrow Holder holds for Assignee the Grant Deed in favor of
Assignee executed and acknowledged by Assignor covering the Real Property, Escrow Holder
shall cause to be issued and delivered to Assignee and Assignor as of the Close of Escrow a
CLTA standard coverage Assignor's policy of title insurance ("Title Policy"), or, upon
Assignee's request therefor, an ALTA extended coverage owner's policy of title insurance,
issued by Title Company, with liability in the amount of the Purchase Price, covering the Real
Property and showing title vested in Assignee free of encumbrances, except:
(a) All non-delinquent general and special real property taxes and assessments
for the current fiscal year;
(b) Those easements, encumbrances, covenants, conditions, restrictions,
reservations, rights-of-way and other matters of record shown on the Preliminary Title
Report which have been approved by Assignee pursuant to Section 5.1 above;
(c) The standard printed exceptions and exclusions contained in the CLTA or
ALTA form policy;
(d) Any exceptions created or consented to by Assignee, including, without
limitation, any exceptions arising by reason of Assignee's possession of or entry on the
Property.
6. DUE DILIGENCE.
6.1 Due Diligence Date. The "Due Diligence Date" shall mean the date which is
forty-five (45) days following the date of the Opening of Escrow.
6.2 Scope of Due Diligence. Assignee shall have the right to make an analysis of the
Property consisting of such engineering, feasibility studies, soils tests, environmental studies,
including but not limited to those described in Section 7.3, and other investigations as Assignee
may desire to permit Assignee to determine the suitability of the Property for its intended
purpose and to conduct such other review and investigation which Assignee deems appropriate
to satisfy itself to acquire the Property.
6.3 Review of Documents. Within five (5) days of the Opening of Escrow, Assignor
shall deliver to Assignee the following documents which Assignor may have in its possession or
control (or reasonable access thereto) for Assignee's review and approval:
(a) True and correct copies of any labor, service, employment, supply,
property management, leases, subleases, equipment leases, insurance and maintenance
contracts which relate to the Property, and any and all amendments thereto.
(b) Copies of all engineering reports, soils studies, soils compaction reports,
grading plans, geologic studies, drainage plans or reports, tentative parcel maps,
development agreements, governmental permits and approvals and any conditions
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thereto, environmental audits and reports, environmental remediation plans (and all
correspondence and documents related thereto), environmental impact reports, permits,
inspections, reports, notices and/or correspondence regarding governmental agency
review and approval respecting fire, building, health, zoning and use compliance.
(c) The most recently available survey of the Property, if any, showing all
Improvements and things located on the Real Property and within ten (10) feet of the
outside property line of the Real Property.
6.4 Entry for Investigation.
(a) Subject to the conditions hereafter stated, Assignor hereby grants to
Assignee, its agents and employees a limited license to enter upon any portion of the
Property for the purpose of conducting engineering surveys, soil tests, investigations or
other studies reasonably necessary to evaluate the condition of the Property, which
studies, surveys, investigations and tests shall be done at Assignee's sole cost and
expense. The license herein granted shall be co-extensive with the term of this
Agreement or any extension thereof.
(b) Assignee shall (i) conduct all studies in a diligent, expeditious and safe
manner and not allow any dangerous or hazardous conditions to occur on the Real
Property during or after such investigation; (ii) comply with all applicable laws and
governmental regulations; (iii) keep the Real Property free and clear of all materialmen's
liens, lis pendens and other liens arising out of the entry and work performed under this
paragraph; and (iv) return the Real Property to its original condition following Assignee's
entry. Assignee agrees to indemnify, defend, protect and hold Assignor and the Property
free and harmless from any and all loss, liability, claims, damages and expenses
(including, but not limited to, attorneys' fees and costs) arising directly or indirectly from
the exercise of said license. Such undertaking of indemnity shall survive Close of
Escrow or the termination of this Agreement for any reason.
6.5 Approval of Due Diligence Matters. Assignee shall notify Assignor in writing
("Assignee's Due Diligence Notice") on or before the Due Diligence Date of Assignee's
approval or disapproval of each item delivered to or available for review by Assignee pursuant to
this Section 6 and of Assignee's approval or disapproval of the condition of the Property and
Assignee's investigations with respect thereto (excluding title matters which are to be approved
or disapproved pursuant to Section 5.1 above) (collectively, the "Due Diligence Items"), which
approval may be withheld in Assignee's sole and absolute discretion.
6.6 Approval of Additional Due Diligence Matters. In the event Assignor or Owner
becomes aware of or obtains possession of any new Due Diligence Items after the Due Diligence
Date, either of them will provide Assignee with written notice of such Due Diligence Item to
Assignee. Assignee shall have the right to review and approve such Due Diligence Item in the
same manner as set forth in Section 6.5 above; provided, however, that Assignee's period to
review and approve or disapprove such additional Due Diligence Item shall be limited to ten (10)
days following receipt of notice of such new Due Diligence Item, together with a copy of any
written document relating thereto.
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7. CONDITIONS PRECEDENT TO CLOSE OF ESCROW.
7.1 Conditions to Assignee's Obligations. The obligations of Assignee under this
Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Assignee
of each of the following conditions precedent:
(a) Title Company will issue the Title Policy as required by Section 5.2 of this
Agreement.
(b) Assignee has approved or deemed to have approved the condition to title
of the Property on or before the date provided in Section 5.1.
(c) Assignee has approved or deemed to have approved all Due Diligence
Items on or before the Due Diligence Date.
(d) Assignee's approval with the environmental testing and contingency under
Section 7.3.
(e) Assignor has removed from the Property all equipment, personal property,
debris and waste.
(f) Escrow Holder holds and will deliver to Assignee the instruments and
funds, if any, accruing to Assignee pursuant to this Agreement.
(g) All representations and warranties specified in Section 9.1 are true and
correct.
(h) Assignee's approval of any other conditions specified in this Agreement.
(i) Assignor and Owner shall not be in default of any term or condition of this
Agreement.
Assignee's approval shall be based upon Assignee's sole and absolute discretion; provided,
however, if Assignee has not delivered written notice of approval of the above conditions to
Assignor and Escrow Holder by the times provided above, or if no time is provided, on or before
the Close of Escrow, each such condition shall automatically and conclusively be deemed to
have been disapproved by Assignee.
7.2 Environmental Testing and Contingency.
The Closing of Escrow shall be subject to and conditioned upon Assignee's
written acceptance, approval of the physical and environmental conditions at, under and about
the Property, and the absence from the Property of any hazardous substances, hazardous wastes
and/or hazardous materials as such terms are defined in their broadest form under any applicable
federal, state or local law or regulation, and any other kind of soil, air, or water contamination.
Upon Assignee's review of any Phase I or Phase 11 Report and completion of any other testing
Assignee deems necessary, if Assignee, in its sole discretion, determines that an additional
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environmental assessment is necessary, then Assignee may elect to obtain such assessment at its
sole cost, provided such assessment is complete by the Due Diligence Date.
7.3 Covenant of Parties. All Parties agree to cooperate with one another, at no cost or
expense to the cooperating party, in satisfying the conditions precedent to Close of Escrow.
Assignee shall be responsible for proceeding with diligence and in good faith to satisfy the
conditions to Assignee's performance set forth in Section 7.1 and Assignor shall be responsible
for proceeding with diligence and in good faith to satisfy the conditions to Assignor's
performance set forth in Section 7.2.
7.4 The Disapproving Termination for Failure of Condition. In the event either party
fails to approve or disapprove any condition precedent specified in Section 7.1 or 7.2 or
elsewhere in this Agreement on or before the date for approval set forth therein, or in the event
of a disapproval of any condition precedent, the other party shall have a period of ten (10) days
from receipt of notice of such failure to act or of such disapproval to correct the condition so that
Escrow may close. In the event such condition is not corrected within such period, either party
may cause the termination of this Escrow by giving such notice to the other party and the Escrow
Holder. Any failure to act shall be deemed a disapproval.
8. ADDITIONAL COVENANTS OF ASSIGNEE AND OWNER.
8.1 Environmental Claims. Except as provided herein, Assignee does not release any
party from liability under all Environmental Laws asserted at any time in connection with any set
of facts or conditions existing in, on or about the Property prior to Closing arising from the
Property (hereinafter referred to as 'Retained Environmental Liabilities"). For purposes of this
Agreement, "Environmental Laws" shall mean all federal, state or local statutes, regulations,
ordinances, codes or rules as such have been or may hereafter be enacted, adopted, amended or
supplemented and all common law causes of action relating to the protection of human health or
the environmental, including without limitations the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.), the
Federal Water Pollution Control Act, as amended (33 U.S.C. Section 7401, et seq.), the Toxic
Substance Control Act, as amended (15 U.S.C. 2601, et seq.), the Safe Drinking Water Act, as
amended (42 U.S.C. Section 300f, et seq.), the Federal Insecticide, Fungicide and Rodenticide
Act, as amended (7 U.S.C. Section 136, et seq.) and the Clean Air Act, as amended (42 U.S.C.
7401, et seq.), and private rights of action for nuisance or damages to property or persons.
Notwithstanding any contrary provisions of this Agreement or otherwise, upon the
execution of this Agreement by Assignee, Assignee shall and does hereby release Owner from
any liability, cost or expense Assignee may incur as a result of Assignee's purchase of the
Property or the presence of any Hazardous Materials (hereinafter defined) which are or may be
located in, on or about the property commencing on the Close of Escrow or at any time
thereafter, with the exception of the Retained Environmental Liabilities. Such release shall
survive the Closing Date. For the purposes of this Agreement, Hazardous Materials shall be
deemed to mean asbestos, polychlorinated biphenyls, petroleum or by-products thereof,
radioactive materials, or any chemical, material or substance included in the definitions of
"hazardous substances", "hazardous materials", "hazardous waste", "toxic substances" and/or
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words of similar import under any federal, state and local laws, ordinances, rules and regulations
whether present or future, relating to and/or dealing with the protection of the environment
and/or human health and safety and/or applicable to the generation, handling, manufacture,
installation, treatment, storage, use, transportation, discharge, disposal, presence and/or release
into the air, soil, water at, above or below ground level (whether accidental or intentional) of
such substances or materials.
8.2 Survival. Notwithstanding any other provision of this Agreement, the provisions
of this Section 8 shall survive the Close of Escrow and the delivery of the Grant Deed.
8.3 Assignor Covenants. Except as specifically set forth in this Agreement, the sale
of the Property hereunder is and will be made on an "AS IS" BASIS, IN ITS PRESENT
CONDITION, WITH ALL FAULTS, IF ANY, AND EXCEPT AS EXPRESSLY SET
FORTH HEREIN, WITHOUT ANY WARRANTY OF ANY KIND OR NATURE,
EXPRESS, IMPLIED OR OTHERWISE. Assignee acknowledges that Assignee will
examine, review and inspect all matters which in Assignee's judgment bear upon the Property
and its value and suitability for Assignee's purposes. Except as to matters specifically set forth
in this Agreement, Assignee will acquire the Property solely on the basis of its own physical and
financial examinations, reviews and inspections. Except as expressly set forth in this Section 8.3
of this Agreement, Assignee acknowledges that neither Assignor nor anyone on behalf of
Assignor has made any representations, statements or warranties regarding the Property,
including the physical condition of the Property, the location of the Property in any Natural
Hazards Area, the value, nature or quality of the Property, the soil, water, or geology relating to
the property, any income to be derived from the Property, the suitability of the Property for any
activities or uses which Assignee may wish to conduct, compliance of the Property with any law,
ordinance, rule, or regulation, or the status of any permits or approvals relating to or required in
connection with the Property or any other matters. Except as expressly set forth in this Section
8.3 of this Agreement, to the extent Assignor has made or in the future make any information
regarding any aspect of the Property available to Assignee, including the Property Documents
and the Natural Hazard Disclosure Statement, Assignor has done or will be doing so only as an
accommodation to Assignee. Assignor has not made, and is not making, and shall not make any
representation or warranty of any nature concerning the accuracy or completeness of Assignor's
files or concerning the authenticity, source, accuracy or completeness of any information
contained in them or furnished or to be furnished to Assignee. No latent or other defect affecting
the Property in any way, whether or not known by Assignee or discoverable or hereafter
discovered, shall after the Feasibility Period affecting Assignee's right to obtain a refund of
Assignee's Deposit or its obligation to purchase the Property, nor shall give rise to any right of
damages, recision or otherwise against Assignor.
8.4 Assignor Release from Liability. Assignee and anyone claiming by, through or
under Assignee hereby waives its right to recover from and fully and irrevocably releases
Assignor and Assignor's employees, officers, directors, representatives, agents, servants,
attorneys, affiliates, parents, subsidiaries, successors and assignees, and all persons, firms,
corporations, and organizations in its behalf ("Released Parties") from any and all claims,
responsibility and/or liability that it may now have or hereafter acquire against any of the
Released parties for any and all costs, losses, claims, liabilities, damages, expenses, demands,
debts, controversies, claims, actions or causes of actions (collectively "Claims") arising from or
IRV 426007 v5 _10_ Draft of 11/22/02
/!i¢/Z
related to: (i) the condition (including any construction defects, errors, omissions or other
conditions, latent or otherwise, and the presence in the soil, air, structures and surface and
subsurface waters of materials or substances that have been or may in the future be deemed to be
Hazardous Materials or otherwise toxic, hazardous, undesirable or subject to regulation and that
may need to be specifically treated, handled and/or removed from the property under current or
future federal, state and local laws, regulations or guidelines), valuation, salability or utility of
the Property or its suitability for any purposes whatsoever, and (ii) any information furnished by
the Released Parties in connection with this Agreement. This release expressly includes claims
of which Assignee is presently unaware or which Assignee does not presently suspect to exist
which, if known by Assignee, would materially affect Assignee's release to Owner. Assignee
expressly waives any of its rights granted under California Civil Code Section 1542, which
provides as follows:
A GENERAL RELEASES DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
To the extent permitted by law, Assignee hereby agrees, represents and warrants that Assignee
realizes and acknowledges that factual matters now unknown to it may have given or may
hereafter give rise to Claims which are presently unknown, unanticipated and unsuspected, and
Assignee further agrees, represents and warrants that the waivers and releases herein have been
negotiated and agreed upon in light of the realization and that Assignee nevertheless hereby
intends to release, discharge and acquit the Released Parties from any and all Claims.
Assignor and Assignee have agreed upon the Price relating to the Property and
other provisions of this Agreement in contemplation and consideration of Assignee's agreeing to
the provisions of Sections 8.4 hereof.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Representations and Warranties. Assignor and Owner hereby makes the
following representations and warranties to Assignee, each of which (i) is material and relied
upon by Assignee in making its determination to enter into this Agreement; (ii) to Assignor's and
Owner's actual knowledge, is true in all respects as of the date hereof and shall be true in all
respects on the date of Close of Escrow on the Property; and (iii) shall survive the Close of
Escrow of the purchase and sale of the Property as well as any future transfer of the Property to
any transferee, successor or assignee of Assignee:
(a) There are no pending or threatened litigation, allegations, lawsuits or
claims, whether for personal injury, property damage, property taxes, contractual disputes
or otherwise, which do or may affect the Property or the operation or value thereof, and
there are no actions or proceedings pending or, to the best of Assignor's and Owner's
knowledge, threatened against Assignor and Owner before any court or administrative
agency in any way connected with the Property and neither the entering into of this
IRV#26007 v5 _1 1_ Draft of 11/22/02
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Agreement nor the consummation of the transactions contemplated hereby will constitute
or result in a violation or breach by Assignor and Owner of any judgment, order, writ,
injunction or decree issued against or imposed upon it. There is no action, suit,
proceeding or investigation pending or threatened against Assignor and Owner which
would become a cloud on Assignee's title to or have a material adverse impact upon the
Property or any portion thereof or which questions the validity or enforceability of the
transaction contemplated by this Agreement or any action taken pursuant hereto in any
court or before or by any federal, district, county, or municipal department, commission,
board, bureau, agency or other governmental instrumentality.
(b) There are no contracts, leases, claims or rights affecting the Property and
no agreements entered into by or under Assignor or Owner shall survive the Close of
Escrow that would adversely affect Assignee's rights with respect to the Property, except
as heretofore disclosed in writing by Owner or Assignor to Assignee pursuant to Section
6.3.
(c) Owner and Assignor has delivered or, within the period required in
Section 6.3, will have delivered true, correct and complete copies of all the documents
and other information specified in Section 6.3 in Owner and Assignor's possession or
control (or has reasonable access thereto). To the best of Owner's and Assignor's
knowledge, the information contained in the said documents is true and accurate.
(d) With the exception of the Lease Agreement and Purchase Agreement
(Exhibits A and B), there are no executory contracts, options or agreements existing
(other than this Agreement) relating to the purchase of all or any portion of the Property
or any interest therein.
(e) All federal, state, municipal, county and local taxes, the nonpayment of
which might become a lien on or affect all or part of the Property, which are due and
payable prior to the Closing have been paid, or on the Closing Date will have been paid
in full.
(f) There are no contingent liabilities arising out of the ownership or
operation of, or affecting, the Property or any part thereof which would be binding upon
the Assignee or to which the Property would be subject after the Closing.
(g) The closing of the various transactions contemplated by this Agreement
will not constitute or result in any default or event that with the notice or lapse of time, or
both, would be a default, breach or violation of any lease, mortgage, deed of trust or other
agreement, instrument or arrangement by which Owner or the Property are bound. The
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby will not violate any provision of, or require any consent,
authorization or approval under any law or administrative regulation or any order, award,
judgment, writ, injunction or decree applicable to, or any governmental permit or license
issued to Owner relating to the Property.
IRV#26007 v5 _12_ Draft of 11/22/02
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All representations and warranties made hereunder are in addition to any representations
and warranties implied by law and in no event shall this Section 9.1 be construed to limit,
diminish or reduce any obligation of disclosure implied upon Owner by law.
9.2 Changed Circumstances. If Owner becomes aware of any fact or circumstance
which would change or render incorrect, in whole or in part, any representation or warranty
made by Owner under this Agreement, whether as of the date given or any time thereafter
through the Close of Escrow and whether or not such representation or warranty was based upon
Owner's knowledge and/or belief as of a certain date, Owner will give immediate written notice
of such changed fact or circumstance to Assignee, but such notice shall not release Owner of its
liabilities or obligations with respect thereto. Owner shall issue a certificate as of the Close of
Escrow stating that all the representations and warranties contained in Section 9.1 are true and
correct as of said date, or setting forth in detail which of such matters are not true and correct.
Assignee shall have ten (10) days from the receipt of any notice by Owner of the material change
of any representation or warranty made by Owner hereunder to terminate this Agreement by
providing written notice to Owner and Escrow Holder, and receive return of its Deposit and any
other sums deposited in the Escrow.
10. ESCROW PROVISIONS.
10.1 Escrow Instructions. The escrow instructions shall be as provided in the Purchase
Agreement.
11. BROKERAGE COMNIISSIONS.
Brokerage Commission shall be as set forth in the Purchase Agreement.
12. POSSESSION.
Possession of the Property shall be delivered to Assignee , pursuant to the Lease
Agreement, upon execution of this Agreement by all parties.
13. DEFAULTS; ENFORCEMENT.
13.1 Defaults and Right to Cure. Failure or delay by either party to timely perform any
covenant of this Agreement constitutes a default under this Agreement, but only if the party who
so fails or delays does not conunence to cure, correct or remedy such failure or delay within
fifteen (15) days after receipt of a written notice specifying such failure or delay, and does not
thereafter prosecute such cure, correction or remedy with diligence to completion. The injured
party shall give written notice of default to the party in default, specifying the default complained
of by the injured party. Except as required to protect against further damages, the injured party
may not institute proceedings against the party in default until fifteen (15) days after giving such
notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default.
13.2 Specific Performance. In addition to any other remedies permitted by this
Agreement, if either party defaults hereunder by failing to perform any of its obligations herein,
each party agrees that the other shall be entitled to the judicial remedy of specific performance,
IRV#26007 v5 _13_ Draft of 11/22/02
///¢1S`-
and each party agrees (subject to its reserved right to contest whether in fact a default does exist)
not to challenge or contest the appropriateness of such remedy.
14. MISCELLANEOUS.
14.1 Successors and Assigns. This Agreement shall be binding upon the parties hereto
and their respective heirs, representatives, transferees, successors and assigns. The transfer of all
or any part of the interest of any party hereunder in the Property shall not release Owner of its
obligations under this Agreement.
14.2 Time of Essence. Time is of the essence in this Agreement and with respect to
each covenant and condition hereof. Assignee and Owner each specifically agrees to strictly
comply and perform its obligations herein in the time and manner specified and waives any and
all rights to claim such compliance by mere substantial compliance with the terms of this
Agreement.
14.3 Time Period Computations. All periods of time referred to in this Agreement
shall include all Saturdays, Sundays and California state or national holidays unless the reference
is to business days, in which event such weekends and holidays shall be excluded in the
computation of time and provide that if the last date to perform any act or give any notice with
respect to this Agreement shall fall on a Saturday, Sunday or California state or national holiday,
such act or notice shall be deemed to have been timely performed or given on the next
succeeding day which is not a Saturday, Sunday or California state or national holiday.
14.4 Qualification: Authority. Each individual executing this Agreement on behalf of
a partnership or corporation represents and warrants that such entity is duly formed and
authorized to do business in the State of California and that he or she is duly authorized to
execute and deliver this Agreement on behalf of such partnership or corporation in accordance
with authority granted under the formation documents of such entity, and, if a corporation, by a
duly passed resolution of its Board of Directors, that all conditions to the exercise of such
authority have been satisfied, and that this Agreement is binding upon such entity in accordance
with their respective terms. Upon request of either party, Escrow Holder or Title Company,
Assignee and Owner agree to deliver such documents reasonably necessary to evidence the
foregoing.
14.5 Attorneys' Fees; Indemnity. In the event of any dispute between the parties
hereto arising out of the subject matter of this Agreement or the Escrow, or in connection with
the Property, the prevailing party in such action shall be entitled to have and to recover from the
other party its actual attorneys' fees and other expenses and costs in connection with such action
or proceeding (including expert witness fees) in addition to its recoverable court costs. In the
event of any challenge to the validity of this Agreement or any terms herein naming the City,
Assignor shall indemnify and defend the City as against any and all such Claims, suits or actions.
14.6 Interpretation: Governing Law. This Agreement shall be construed according to
its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in
accordance with the laws of the State of California in effect at the time of the execution of this
Agreement. Titles and captions are for convenience only and shall not constitute a portion of
IRV 926007 vs -14- Draft of 11/22/02
///�iZ
this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the
singular or plural number shall each be deemed to include the others wherever and whenever the
context so dictates.
14.7 No Waiver. No delay or omission by either party hereto in exercising any right or
power accruing upon the compliance or failure of performance by the other party hereto under
the provisions of this Agreement shall impair any such right or power or be construed to be a
waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions
or agreements hereof to be performed by the other party shall not be construed as a waiver of any
succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof.
14.8 Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made by written instrument or endorsement thereon and in
each such instance executed on behalf of each party hereto.
14.9 Severability. If any term, provision, condition or covenant of this Agreement or
the application thereof to any party or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument, or the application of such term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
14.10 Merger of Prior Agreements and Understandings. This Agreement and other
documents incorporated herein by reference contain the entire understanding between the parties
relating to the transaction contemplated hereby and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged herein and shall be of
no further force or effect.
14.11 Covenants to Survive Escrow. The covenants and agreements contained herein
shall survive the Close of Escrow and, subject to the limitations on assignment contained in
Section 14.1 above, shall be binding upon and inure to the benefit of the parties hereto and their
representatives, heirs, successors and assigns.
14.12 Consent of Parties. Whenever by the terms of this Agreement the consent or
approval of Assignee or Owner is to be given, such consent or approval shall be evidenced by the
signature of one person designated for such purpose. Initially such person for Owner shall be
John C Killen and such person for Assignee shall be the City Manager of Assignee. Such
designated persons may be changed by the party so designating at any time by the delivery of a
written notice to the other party.
14.13 Execution in Counterpart. This Agreement and any modifications, amendments
or supplements thereto may be executed in several counterparts, and all so executed shall
constitute one agreement binding on all parties hereto, notwithstanding that all parties are not
signatories to the original or the same counterpart.
14.14 Notices. Any notice which either party may desire to give to the other party or to
the Escrow Holder must be in writing and shall be effective (i) when personally delivered by the
other party or messenger or courier thereof, (ii) three (3) business days after deposit in the United
IRV#26007 v5 _15_ Draft 0 It/ 2/0
States mail, registered or certified; (iii) twenty-four (24) hours after deposit before the daily
deadline time with a reputable overnight courier or service; or (iv) upon receipt of a telecopy or
fax transmission, provided a hard copy of such transmission shall be thereafter delivered in one
of the methods described in the foregoing (i) through (iii); in each case postage fully prepaid and
addressed to the respective parties as set forth below or to such other address and to such other
persons as the parties may hereafter designate by written notice to the other parties hereto:
To Assignor:: Burnett Development Corporation
1300 Bristol Street North, Suite 200
Newport Beach, CA 92660
Attn: Tom Le Beau
To Assignee: City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Attention: David H. Ready, City Manager
Copy to: Burke, Williams & Sorensen, LLP
18301 Von Karman Avenue, Suite 1050
Irvine, California 92612
Attn: David J. Aleshire, Esq.
Facsimile: (949) 863-3350
To Owner: The Neil R. and Carol A. Anenberg Family Trust
20 Bay Drive
Laguna Beach, California 92651
14.15 Exhibits. Exhibits "A" through "C", inclusive, attached hereto, are incorporated
herein by this reference.
IN WITNESS WIdEREOF, the parties hereto have executed this Agreement of Purchase
and Sale of Real Property and Escrow Instructions as of the date set forth above.
"AS SIGNOR"
BURNETT DEVELOPMENT CORPORATION, a
California corporation
By:
Title:
By:
Title:
IRV#26007 v5 -16- Draftof lIN2//02
(/ /90
"ASSIGNEE"
ATTEST: CITY OF PALM SPRINGS, a chartered municipal
corporation
By:
City Clerk David H. Ready, City Manager
APPROVED AS TO FORM
BURKE, WILLIAMS & SORENSEN, LLP
David J. Aleshire, Esq.
City Attorney
[SIGNATURES FOLLOW NEXT PAGE]
IRV#26007 v5 _17_ Draft of 11/22/02
.1,1AI9
AGREED AND ACCEPTED AS OF THIS
DAY OF 2002
ESCROW COMPANY
By:
Escrow Officer
"Escrow Holder"
"OWNER"
THE NEIL R. AND CAROL A. ANENBERG
FAMILY TRUST
By:
Title:
By:
Title:
IRV#26007 v5 _I g_ Draft of 11/22/02
SCHEDULE OF EXHIBITS
EXHIBIT "A" PURCHASE AGREEMENT
EXHIBIT`B" LEASE AGREEMENT
EXHIBIT "C" LEGAL DESCRIPTION OF LAND
EXHIBIT"D" PLAN AREA MAP
EXHIBIT "E" GRANT DEED
EXHIBIT "F" NON-FOREIGN AFFIDAVIT
IRV 926007 V5 -19- Dratt of 11/22/02
11,4 a/
EXHIBIT"C"
LEGAL DESCRIPTION OF LAND
The Land is that certain real property located in the City of Palm Springs, County of
Riverside, State of California, described as follows:
That portion of the Northwest quarter of Section 3, Township 4 South, Range 4
East, San Bernardino Base and Meridian, more particularly described as follows:
Commencing at the intersection of the centerline of the State Highway, with the
North line of said Section 3, being 89 degrees 43'15" East a distance of 1321.90
feet from the Northwest corner of said Section 3;
Thence South 38 degrees 32'45" East, a distance of 522.32 feet on the centerline
of said State Highway;
Thence South 51 degrees 27'15" West, a distance of 41 feet to the point of
beginning;
Thence continuing South 51 degrees 27'15" West a distance of 220 feet;
Thence North 38 degrees 32'45" West, a distance of 220 feet;
Thence North 51 degrees 27'15" East, a distance of 220 feet to the Southwesterly
line of said State Highway;
Thence South 38 degrees 32'45" East, a distance of 220 feet on the Southwesterly
line of said State Highway to the point of beginning.
APN: 504-040-001-8
IRV#26007 v5 C-1 Draft ofA11/22/02
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EXHIBIT "E"
GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF PALM SPRINGS
3200 E. Tahquitz Canyon Drive
Palm Springs, California 92262
Attn: City Clerk
Space above this nine for Recorder's Use
MAIL TAX STATEMENTS TO: DOCUMENTARY TRANSFER TAX$
City of Palm Springs ...Computed on the consideration or value of property
3200 E. Tahquitz Canyon Drive conveyed;OR
Palm Springs, CA 92262 ...Computed on the consideration or value less liens or
Attn: Finance Director encumbrances remaining at times of sale.
Signature of Declarant or Agent determining tax -
Firm Name
Order No.
Escrow No.
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
BURNETT DEVELOPMENT CORPORATION, a California corporation, hereby grants to the
CITY OF PALM SPRINGS, a chartered municipal corporation, the real property in the City of
Palm Springs, County of Riverside, State of California, described in Exhibit "I" attached hereto
and incorporated herein by reference (the"Property").
IRV 926007 v5 E-1 Draft of 11/22/02
//A P�
The Property conveyed hereby is subject to (i) non-delinquent general and special real
property taxes and assessments; and (ii) matters of record.
Dated: 12002 BURNETT DEVELOPMENT CORPORATION, a
California corporation
By:
Title:
By:
Title:
IRV 926007 v5 E-2 Draft of 11/22/02
J11 A1/ z�7
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On before me, Notary Public,
personally appeared personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
IRV#26007 v5 E-3 Draft of 11/22/02
1/.4 4;�S
EXHIBIT "1" TO GRANT DEED
LEGAL DESCRIPTION OF LAND
The Land is that certain real property located in the City of Palm Springs, County of
Riverside, State of California, described as follows:
That portion of the Northwest quarter of Section 3, Township 4 South, Range 4
East, San Bernardino Base and Meridian, more particularly described as follows:
Conunencing at the intersection of the centerline of the State Highway, with the
North line of said Section 3, being 89 degrees 43'15" East a distance of 1321.90
feet from the Northwest corner of said Section 3;
Thence South 38 degrees 32'45" East, a distance of 522.32 feet on the centerline
of said State Highway;
Thence South 51 degrees 27'15" West, a distance of 41 feet to the point of
beginning;
Thence continuing South 51 degrees 27'15" West a distance of 220 feet;
Thence North 38 degrees 32'45" West, a distance of 220 feet;
Thence North 51 degrees 27'15" East, a distance of 220 feet to the Southwesterly
line of said State Highway;
Thence South 38 degrees 32'45" East, a distance of 220 feet on the Southwesterly
line of said State Highway to the point of beginning.
APN: 504-040-001-8
IRV#26007 v5 E-4 Draft of 11/22/02
/r4 79
EXHIBIT "F"
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon disposition of a U.S. real property interest by
BURNETT DEVELOPMENT CORPORATION, a California corporation ("Transferor"), the
undersigned hereby certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Transferor's U.S. employer identification number is ; and
3. Transferor's office address is
The undersigned understands that this certification may be disclosed to the Internal
Revenue Service by the transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this certification and to the best
of my knowledge and belief, it is true, correct, and complete, and I further declare that I have
authority to sign this document on behalf of Transferor.
Dated: 2002 "Transferor"
BURNETT DEVELOPMENTCORPORATION, a
California corporation
By:
Title:
By:
Title-:
Address of Property for Sale:
See legal description attached as Exhibit "A"
IRV#26007 v5 F_I Draft of 11/22/02
// d 3v
EXHIBIT "A" TO NON-FOREIGN AFFIDAVIT
LEGAL DESCRIPTION OF LAND
The Land is that certain real property located in the City of Palm_ Springs, County of
Riverside, State of California, described as follows:
That portion of the Northwest quarter of Section 3, Township 4 South, Range 4
East, San Bernardino Base and Meridian, more particularly described as follows:
Commencing at the intersection of the centerline of the State Highway, with the
North line of said Section 3, being 89 degrees 43'15" East a distance of 1321.90
feet from the Northwest corner of said Section 3;
Thence South 38 degrees 32'45" East, a distance of 522.32 feet on the centerline
of said State Highway;
Thence South 51 degrees 27'15" West, a distance of 41 feet to the point of
beginning;
Thence continuing South 51 degrees 27'15" West a distance of 220 feet;
Thence North 38 degrees 32'45" West, a distance of 220 feet;
Thence North 51 degrees 27'15" East, a distance of 220 feet to the Southwesterly
line of said State Highway;
Thence South 38 degrees 32'45" East, a distance of 220 feet on the Southwesterly
line of said State Highway to the point of beginning.
APN: 504-040-001-8
IRV#26007 v5 F-2 Draft of 11/22/02
1104 �3/
MINUTE ORDER NO.
APPROVING AN ASSIGNMENT OF AGREEMENT
FOR PURCHASE AND SALE OF REAL
PROPERTY AND LEASE AGREEMENT OF REAL
PROPERTY WITH BURNETT DEVELOPMENT
COMPANY OF NEWPORT, BEACH, CALIFORNIA,
FOR A PROPERTY AT 2901 NORTH PALM
CANYON DRIVE, IN THE AMOUNT OF $638,000
PLUS RELATED AND CONTINGENT COSTS, IN
A FORM ACCEPTABLE TO THE CITY
ATTORNEY
I HEREBY CERTIFY that this Minute Order, approving an assignment of an Agreement
for Purchase and Sale of Real Property and Lease Agreement of Real Property with
Burnett Development Company of Newport Beach, California, for a property at 2901
North Palm Canyon Drive, in the amount of $638,000 plus related and contingent costs,
in a form acceptable to the City Attorney, was approved by the City Council of the City of
Palm Springs, California, in a meeting thereof held on the 4th day of December 2002.
PATRICIA A. SANDERS
City Clerk
Ili
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING THE BUDGET FOR THE 2002-
03 FISCAL.
WHEREAS Resolution 20357 approving the budget for the fiscal year 2002-03 was adopted
on June 5, 2002; and
WHEREAS the City Manager has recommended, and the City Council desires to approve,
certain amendments to said budget;
NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record
inter-fund cash transfers as required in accordance with this Resolution, and that Resolution
20357, adopting the budget for the 2002-03 fiscal year is hereby amended as follows:
SECTION 1. ADDITIONS
Fund Activity Account Amount
112 2017 $638,000
Purpose to appropriate funds for the acquisition of the Tramway Gas Station
SECTION 2. SOURCE
Fund balance in Community Promotion Fund
Fund Activity I Account Amount
112 29301 $638,000
Adopted this 20th day of November, 2002.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED AND APPROVED